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Should I apply for the K-1 or K-3 Visa?

If immigration were not confusing enough, there are some visa categories that cover different classifications. The two that immediately come to mind are the H visa and the K visa. For example, there is an H-1B for professional workers, which is different than an H2B, which is for seasonal workers. For today's discussion, I want to focus on some key differences between the K-1 and K-3 visa because while they both involve loved ones, they are two very different visas. It is important to understand the terminology, as well as the benefits and limitations of each visa, because not everyone can file for a K-1, and not everyone can file for a K-3.

The major difference between the K-1 and K-3

The most salient distinction between the K-1 and K-3 is that the K-1 is for fiancés, that is, foreign nationals who are intending on getting married. The K-3 visa, in contrast, is for spouses of United States Citizens. The K-3 visa does not come into play unless the couple are already married and the US Citizen has already filed an I-130, petition for alien relative, which is still currently pending. In fact, the purpose behind the K-3 visa is to alleviate the waiting times associated with immigrant visa cases for spouses. It is a temporary visa that enables the immigrant spouse to come to the United States while the I-130 is still pending.

Limitations of K-1 and K-3 visas

If a couple marries before or during the K-1 visa process, the K-1 will become invalid because the visa is only for fiancés, not spouses. This is why planning and foresight are crucial to immigration cases. If a couple intend on getting married before six months, they should talk to an immigration attorney to explore whether the K-1 is really the best course of action. It might make sense to explore the marriage visa instead.

On the other hand, spouse visas for husbands or wives of US Citizens are taking approximately one year or longer, as referenced in an earlier entry. While the K-3 visa is potentially an option once the I-130 application is received and pending by USCIS, one should not assume that the spouse will arrive on the K-3. This is because the National Visa Center will not process both the K-3 and I-130. The current policy, according to the Department of State, is that "when both petitions have been approved by USCIS and sent to the NVC or when USCIS approves the I-130 before the I-129F, the availability of, as well as the need for, a nonimmigrant K-3 visa ends." In other words, if immigration approves the I-130 first, then the K-3 process will be discontinued. Remember, the I-130 is filed first, so it has at least a month's head start.

Another little known fact that may play into the logistics of whether to pursue the K-3 visa is that it must be applied for in the country where the marriage occurred. So, if a couple was vacationing and got married in a country that is not the foreign spouse's native country, there may be practical issues to consider as well.

Conclusion

The one thing that is similar, though, to both visas is that neither directly confirms permanent resident status on the beneficiary. Both are just parts of a sequence in getting a green card. If a person arrives here on a fiancé visa, he/she must still get married within ninety days and then file for adjustment of status. If a person arrives on a K-3 visa, he/she must also proceed to file for adjustment of status.

Whether one wants to file for the K-1 or K-3, it is critical to have a realistic idea of processing times, logistics, and wedding dates. Once a fiancé visa is filed, one will have to hold off on marriage until the visa is granted and the person arrives here in the US. On the other hand, if a person is already married, then one needs to understand that the K-1 is no longer an option. The K-3 might be a viable tool, but it does not always work.

We hope that you have enjoyed this article and learned at least one new thing or tip that you may not have known. To keep informed about the latest developments in immigration law, please subscribe to our blog feed by clicking on the "Subscribe To This Blog's Feed" button on the left. It is important to understand that the above is only general information and not legal advice. It does not create an attorney-client relationship nor should it be relied upon as legal advice. The law is extremely fact and circumstance sensitive. For an individual legal analysis of your specific legal case, please complete the "Case Evaluation" box to the right of the screen to get in touch with one of our attorneys.

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